of the sea, being commonly called the Bay of Fundy, though not in reality possessing all the characters usually implied by the 92 term "bay," has of late years been claimed by the provincial

authorities of Nova Scotia to be included among "the coasts, bays, creeks and harbours" forbidden to American fishermen.

An examination of the map is sufficient to show the doubtful nature of this construction. It was notoriously the object of the article of the treaty in question to put an end to the difficulties which had grown out of the operations of the fishermen from the United States along the coasts and upon the shores of the settled portions of the country, and for that purpose to remove their vessels to a distance not exceeding three miles from the same. In estimating this distance, the undersigned admits it to be the intent of the treaty, as it is itself reasonable, to have regard to the general line of the coast; and to consider its bays, creeks, and harbours (that is, the indentations usually so accounted) as included within that line. But the undersigned cannot admit it to be reasonable, instead of thus following the general direction of the coast, to draw a line from the southwestern-most point of Nova Scotia to the termination of the northeastern boundary between the United States and New Brunswick, and to consider the arm of the sea which will thus be cut off, and which cannot on that line be less than sixty miles wide, as one of the bays on the coast from which American vessels are excluded. By this interpretation the fishermen of the United States would be shut out from waters distant, not three, but thirty miles from any part of the colonial coast.

After some argument, Mr. Everett added (App., p. 135) :—

The undersigned flatters himself that these considerations will go far to satisfy Lord Aberdeen of the correctness of the American understanding of the words "Bay of Fundy," arguing on the terms of the treaties of 1783 and 1818. When it is admitted that, as the undersigned is advised, there has been no attempt till late years to give them any other construction than that for which the American Government now contends, the point would seem to be placed beyond doubt. Meantime, Lord Aberdeen will allow that this is a question, however doubtful, to be settled exclusively by Her Majesty's Government and that of the United States.

In this letter the United States appears to take up a fresh position: while it is admitted that bays must be treated as included within the general line of coasts from which the 3 miles is to be measured, an attempt is made to treat the Bay of Fundy as exceptional.

BAY OF FUNDY CONCEDED, 1845.

Lord Aberdeen referred the question as to the Bay of Fundy to the Governor of Nova Scotia, and received a reply (17th September, 1844) in which the Governor (Lord Falkland) after discussing the objection to making any concession even in regard to the Bay of Fundy, said (App., p. 136) :—

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When, however, I perceive that Mr. Everett, in his note of the 25th May, 1844, addressed to Lord Aberdeen, admits that (in estimating

the distance of three miles from the shore within which American fishermen are not permitted to approach) it is "the intent of the treaty as it is in itself reasonable to have regard to the general line of the coast, and to consider its bays, creeks, and harbours, that is, the indentations so accounted, as included within that line," which I take to be an acquiescence in the opinion of Messrs. Dodson and Wilde, that the distance within which American fishermen must not approach is three miles from a line drawn from headland to headland, taking the general configuration of the coast, I cannot but conceive that a great portion of what I have contended for (in my despatch No. 75, dated 8th May, 1841, addressed to Lord John Russell) on the part of the province, is conceded; and it is therefore my unreserved opinion, provided always that this interpretation of Mr. Everett's phraseology be correct, that that which is now asked by the Americans may be granted, without evil consequences, if due care be taken that no further pretensions can hereafter be founded on the concession

On the 10th March, 1845, Lord Aberdeen addressed the following letter to Mr. Everett (App., p. 141) :—

The undersigned will confine himself to stating that after the most deliberate reconsideration of the subject, and with every desire to do full justice to the United States, and to view the claims put forward on behalf of United States' citizens in the most favourable light, Her Majesty's Government are nevertheless still constrained to deny the right of United States citizens, under the treaty of 1818, to fish in that part of the Bay of Fundy which, from its geographical position, may properly be considered as included within the British possessions. Her Majesty's Government must still maintain, and in this view they are fortified by high legal authority, that the Bay of Fundy is rightfully claimed by Great Britain as a bay within the meaning of the treaty of 1818. And they equally maintain the position which was laid down in the note of the undersigned, dated the 15th of April last, that, with regard to the other bays on the British American coasts, no United States' fisherman has, under that convention, the right to fish within three miles of the entrance of such bays as designated by a line drawn from headland to headland at that

entrance.

But while Her Majesty's Government still feel themselves bound to maintain these positions as a matter of right, they are nevertheless not insensible to the advantages which would accrue to both countries from a relaxation of the exercise of that right; to the United States as conferring a material benefit on their fishing trade; and to Great Britain and the United States conjointly and equally, by the removal of a fertile source of disagreement between them.

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Her Majesty's Government are also anxious, at the same time that they uphold the just claims of the British Crown, to evince by every reasonable concession their desire to act liberally and amicably towards the United States.

The undersigned has accordingly much pleasure in announcing to Mr. Everett, the determination to which Her Majesty's Government have come to relax in favour of the United States fishermen, that

right which Great Britain has hitherto exercised, of excluding those fishermen from the British portion of the Bay of Fundy, and they are prepared to direct their colonial authorities to allow henceforward the United States fishermen to pursue their avocations in any part of the Bay of Fundy, provided they do not approach, except in the cases specified in the treaty of 1818, within three miles of the entrance of any bay on the coast of Nova Scotia or New Brunswick.

Mr. Everett replied on the 25th March, 1845 (App., p. 143) :—

The Government of the United States, the undersigned is persuaded, will duly appreciate the friendly motives which have led to the determination on the part of Her Majesty's Government announced in Lord Aberdeen's note, and which he doubts not will have the natural effect of acts of liberality between powerful States, of producing benefits to both parties, beyond any immediate interest which may be favourably affected.

While he desires, however, without reserve, to express his sense of the amicable disposition evinced by Her Majesty's Government on this occasion in relaxing in favour of the United States the exercise of what, after deliberate reconsideration, fortified by high legal authority, is deemed an unquestioned right of Her Majesty's Government, the undersigned would be unfaithful to his duty did he omit to remark to Lord Aberdeen that no arguments have at any time been adduced to shake the confidence of the Government of the United States in their own construction of the treaty. While they have ever been prepared to admit that in the letter of one expression of that instrument there is some reason for claiming a right to exclude United States fishermen from the Bay of Fundy (it being difficult to deny to that arm of the sea the name of "bay " which long geographical usage has assigned to it), they have ever strenuously maintained that it is only on their own construction of the entire article that its known design, in reference to the regulation of the fisheries, admits of being carried into effect.

The undersigned does not make this observation for the sake of detracting from the liberality evinced by Her Majesty's Government in relaxing from what they regard as their right; but it would be placing his own Government in a false position to accept as mere favour, that for which they have so long and strenuously contended as due to them under the convention.

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It becomes the more necessary to make this observation in consequence of some doubt as to the extent of the proposed relaxation. Lord Aberdeen, after stating that Her Majesty's Government felt themselves constrained to adhere to the right of excluding the United States fishermen from the Bay of Fundy, and also with regard to other bays on the British American coasts, to maintain the position that no United States fisherman has, under that convention, the right to fish within three miles of the entrance of such bays, as designated by a line drawn from headland to headland at that entrance, adds that "while Her Majesty's Government still feel themselves bound to maintain these positions as a matter of right, they are not insensible to the advantages which would accrue to both countries from the relaxation of that right."

This form of expression might seem to indicate that the relaxation proposed had reference to both positions; but when Lord Aberdeen

proceeds to state more particularly its nature and extent, he confines it to a permission to be granted to "the United States fishermen to pursue their avocations in any part of the Bay of Fundy, provided they do not approach, except in the cases specified in the treaty of 1818, within three miles of the entrance of any bay on the coast of Nova Scotia and New Brunswick," which entrance is defined, in another part of Lord Aberdeen's note, as being designated by a line drawn from headland to headland.

BOUNDARY IN THE PACIFIC, 1846.

1846.-By a convention between the United Kingdom and the United States made in this year, it was provided that the boundary between Canada and the United States should follow the 49th parallel of north latitude (App., p. 33)—

to the middle of the channel which separates the continent from Vancouver's Island; and thence southerly through the middle of the said channel, and of Fuca's Straits, to the Pacific Ocean; provided, however, that the navigation of the whole of the said channel and straits, south of the 49th parallel of north latitude, remain free and open to both parties.

By this convention the two countries assumed ownership over waters distant from the shore much more than three miles.

BRITISH ATTITUDE, 1852.

1852.-The withdrawal of efficient British naval protection had been followed by such continuous and persistent encroachment by American fishing-vessels upon acknowledged British waters that the British Government was again compelled to dispatch a very considerable armed force to the colonial coasts. The United States Government appears to have thought that this action indicated a change of policy of the British Government. Such was, however, not the case. Lord Malmesbury, in a letter to Mr. Crampton, British Minister at Washington (10th August, 1852), said (App., p. 171):

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Her Majesty's Government intended to leave the matter precisely where it was left in 1845 by the Governments of Great Britain and the United States namely, that the relaxation as to bays applied, as is stated in Lord Aberdeen's note to Mr. Everett of the 21st of April, 1845,"to the Bay of Fundy alone," any further discussion of that question being a matter of negotiation between the two Governments.

NOTICE ISSUED BY MR. WEBSTER, 1852.

In consequence of this letter it became necessary for the United States to assume some clearly defined attitude towards the "bay question, and Mr. Daniel Webster (United States Secretary of State)

issued a notice, in which, admitting that the term "bays," as " usually understood," was "applied equally to small and large tracts of water thus situated," he informed United States fishermen how the case then stood. In his notice he said (App., p. 153) :

It would appear that, by a strict and rigid construction of this article, fishing vessels of the United States are precluded from entering into the bays or harbours of the British provinces, except for the purposes of shelter, repairing damages, and obtaining wood and water. A bay, as is usually understood, is an arm or recess of the sea, entering from the ocean between capes or headlands, and the term is applied equally to small and large tracts of water thus situated. It is common to speak of Hudson's Bay, or the Bay of Biscay, although they are very large tracts of water.

The British authorities insist that England has a right to draw a line from headland to headland, and to capture all American fishermen who may follow their pursuits inside of that line. It was undoubtedly an oversight in the convention of 1818 to make so large a concession to England, since the United States had usually considered that those vast inlets or recesses of the ocean ought to be open to American fishermen as freely as the sea itself to within three marine miles of the shore.

Attempt has been made to minimise the effect of Mr. Webster's declaration, and it is sometimes said that Mr. Webster indicated in his notice that the "strict and rigid construction" was not the true construction. But Mr. Webster said nothing to that effect. His language was (App., p. 153) :—

Not agreeing that the construction thus put upon the treaty is conformable to the intentions of the contracting parties, this information is, however, made public to the end that those concerned in the American fisheries may perceive how the case at present stands, and be upon their guard.

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In Mr. Webster's view, the British interpretation of the language of the treaty appears to be conceded; but he suggested that possibly the language had not properly expressed that which its authors had intended.

That Mr. Webster meant, by the language of his circular, precisely what he said, is shown (if that be necessary) by a despatch from Mr. Crampton (British Minister at Washington) to Lord Malmesbury (2nd August, 1852) (App., p. 157) :— ·

I observe with satisfaction that Mr. Webster now clearly perceives, and fairly admits, the correctness of the construction of the convention of 1818 maintained by Her Majesty's Government. The opinion of the Queen's Advocate and of the Attorney-General is, Mr. Webster said, "undoubtedly right ":-and he afterwards informed me that the President, from whom he had just received a letter on the subject, now concurred in that opinion.

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